profits as a partner, or having personally interfered in the management of the concern. It may also frequently happen that mines in this condition may devolve, by conveyance or operation of law, upon persons who have thus contracted no engagement of partnership. (a) A person may still continue to be entitled to the legal interest in his share, or to the legal or equitable reversion in it, and may cease, for a time, from becoming liable as a partner. Such experiments, however, are often dangerous, if it is desiraable not to incur the liability.

In all cases, where it is intended that a trading partnership should be established, it is desirable that the parties should, by express agreement in writing, declare their intentions, and thus resolve all doubts upon the subject. This precaution seems not only to be reasonably required by the public, who may thus deal with them upon the faith, and with all the advantages, of a partnership; but it may often be indispensable for properly securing the interests of the parties themselves, by enabling them to prosecute the works in an efficient manner.

The consequences of the above distinction are these:-If the works are carried on by persons as mere owners of land, concurring in a general system of management for their common benefit, the shares of each person will only be liable for his individual engagements, and to the payment of debts contracted by himself or his authorized agent, without interfering with the shares of the other tenants in common. It is true, that, in cases of disagreement and mismanagement, a Court of Equity will appoint a general manager for the benefit of the whole. (b) But this remedy will very inadequately provide for the exigencies of such a case. In no other respect, will the parties be liable to the consequences of a partnership in trade. The shares cannot be sold for the liquidation of accounts as between the parties themselves; there cannot be enforced, as upon a dissolution, a general sale of the whole property; there will be no restraint upon the introduction of new partners, and there will, in short, be none of those general incidents of a commercial partnership, the exercise of which may prove of so much importance to the effectual and regular working of a mine.

(a) See Jefferys v. Smith, 3 Russ. 158.
(b) Jefferys v. Smith, 1 Jac. and W. 301.

CHAPTER VI.

ON THE REMEDIES RELATING TO MINES AND MINERALS.

I. Legal remedies.

II. Equitable remedies.

SECTION I.

LEGAL REMEDIES.

THE subject of remedies connected with mining property has been already incidentally discussed in various parts of the treatise. Much, therefore, which might otherwise have have been found under the present title, has been anticipated.-It will be proper, however, to lay before the reader a gen eral view of the subject, which may include the discussion of those remedies which have not yet been particularly mentioned.

It has been seen that a property may be acquired in mines, which will be quite independent of the property in the lands in which they are situate. In this condition, the minerals, of whatever character they may be, will, of course, still form parts of the land itself, and will constitute land in strictly legal acceptation. As such, mines become liable to the adminstration of all the usual remedies relating to the law of real property, except in those cases which, in consequence of the peculiarity of this species of property, may ne cessarily demand some modification of those remedies. It may be proper to remind the reader that the word mine is not here used in its strict sense, but as descriptive of the strata, or minerals themselves.

An action of trespass may be maintained in respect of any improper interference with the enjoyment of mines, in all those cases in which that remedy is generally applicable. The same kind of action is usually resorted to for trying the validity of a trial. (a)

But an action of ejectment will also be maintainable for recovering possession of a mine. It might certainly be contended, when the mines form a distinct inheritance, that the action of ejectment is possessory; that the object of contention must, at least, be such as to be capable of actual possession from the delivery of the sheriff; that all the excavated parts would be of an incorporeal nature, or, at any rate, would become part of the general freehold, through which a mere right of way would be permissible; and that all the portions, which are severed, instantly lose the character of land, and become mere personal chattels. Such an action would certainly not seem to cor

(a) Bourne v. Taylor, 10 East, 189. Roberts v. Davey, 4 B. and Ad, 665.

respond, in such case, with its exact definition. But in this, as in some other instances, the action of ejectment has been carried beyond its original limits. And it has been expressly decided, that such an action for the recovery of mines may be supported. (a)

It would seem, however, to be doubtful whether such an action could be. brought to recover the possession of unopened mines, the title to which is distinct from that to the surface (b) This subject has been already partially discussed in considering the operation of a feoffment with livery of seisin. In a case of unopened mines, it was observed by Lord Hardwicke, that the question was not, whether actual entry was necessary, and he denied that without entry an action of ejectment could not be brought; for the common rule, obliging the defendant to confess lease, entry, and ouster, was, in law, sufficient to support that. (c)

It has been seen, that an ejectment cannot be brought by the lord of a manor for the mines situate in the lands of his copyhold tenant, in the absence of special custom; for though the former is entitled to the right of property, the latter is entitled to the right of possession. (d)

It has been decided, that such an action will not properly lie in respect of a license only to work mines. In the case of a license, an action of this kind was brought for the recovery of mines. It was held by the Court of King's Bench, that a proviso for re-entry was not less applicable to a license to work mines, than to an actual demise of the minerals, because under such license works might be effected, and a corporal possession had, which it might be competent for the grantor to reserve, but that such an instrument did not confer a right sufficient to support the action of ejectment. (e)

But the grant of a license will support an action of trespass. (ƒ)

When the minerals are severed from their native bed, and become the subject of manipulation, they are mere personal chattels, like the trees. which are severed from the freehold, and an action of trover will, therefore, be maintainable for their recovery in that condition. This form of action. has been often adopted to try the right to mines. (g)

But an action of trover cannot be maintained for the recovery of a certificate or voucher of a person being entitled to certain shares in a mining as sociation, if the plaintiff can show no legal title to the document. (h)

(a) Comyn v. Kyneto, Cro. Jac. 150. De mineris carbonum in the county of Durham, Carth. 277. Wyld's case. Lawson v. Williams, cited Cro, Jac. 150. Cullen v. Rich, Bull. N. P. 102. Harebottle v. Placock, Cro. Jac. 21.

(b) Lewis v. Branthwaite, 2 Barn. and Ad. 437.

(c) Sayer v. Pierce, 1 Ves. sen. 234.

(d) Sayer v. Pierce, 1 Ves. sen. 232. See chap. iii. sec. ii,

(e) Doe d. Hanley v. Wood, 2 Barn. and Ald. 739, 740.

(f) Bishop of Winchester v. Knight, 1 P. W, 407. Harker v. Birkbeck, 1 W. Black. 482. 3 Burr, 1556. Roberts v. Davey, 4 Barn. and Ad. 665,

(g) Player v. Roberts, W. Jones, 243. Cullen (Lord) v. Rich, Bull. N. P. 102. 2 Str. 1142. Rowe v. Brenton, 8 Barn and C. 737. Rowe v. Grenfell, R. and M, 396,

(h) Dawson v. Rishworth, 1 Barn, and Ad, 574.

An action for use and occupation was held to be maintainable, in respect of a shaft or down, which had been let by a written agreement not under scal, if the defendant could be considered as having taken possession of the shaft; and he was also held liable, under those circumstances, to all the rent payable to the lessor till the determination of his tenancy, and whether he has continued to work the mine or not. But it was also said, that if he had merely caused holes to be dug, and had them filled up immediately, with a view to ascertain only what kind of a bargain he was about to make or had made, such acts would not amount to a taking of possession. (a)

Mines may also be taken possession of under the writ of elegit. A tenant in elegit, it has been seen, cannot open mines in lands of which he has taken possession. This restriction, it is presumed, would not apply to mines forming a separate inheritance; for such an exercise of power would not constitute waste. The point, however, is of little practical importance, as it can rarely, if ever, happen, notwithstanding the recent extension of the remedy, that such a temporary tenant would feel justified in proceeding to open mines.

At common law, an action of waste was maintainable to recover the place wasted, as well as damages for the injury done to the inheritance. This form of action, however, was attended with many difficulties and peculiarities, and gradually fell into disuse. It is now expressly abolished. (b) The mod. ern remedies for punishing the commission of waste are an action on the case in the nature of waste, an action of covenant, and an action of assumpsit. The two latter actions are almost confined to cases between landlord and tenant. The action of assumpsit is resorted to when the tenancy is by agreement, not under seal, or in cases of an implied covenant. The action of covenant arises upon express and legal covenants. But an action on the case is most generally applicable, in cases of waste, and is maintainable by the reversioner or remainder man for life or years, against a stranger or tenant, even if the latter be a tenant at will or by sufferance. (c) It may be brought against a tenant after the expiration of his term. (d)

If a lease contain an express covenant against waste, the lessor may still bring an action on the case against the tenant. (e)

An action of trespass is also maintainable in cases of waste. (f)

In all these cases, damages may be recovered for the amount of injury sustained.

The remedies with respect to waste committed by ecclesiastical persons have already been discussed. (g)

(a) Jones v. Reynolds, 7 Carr, and P. 335. Per Coleridge, J.

(b) 3 and 4 Will. IV, c. 27, s. 36.

(c) 2 Wms. Saund. 252, n. 7. West v. Treude, Cro. Car. 187.

(d) Kinly side 2. Thornton, Bl. Rep. 1111.

(g) See Chap. iv.

Sir Thomas Plumer.

(e) Ibid.

Sir W. Jones, 224.
(f) West v. Treude, supra.
See also Herring v. Dean and Chapter of St. Paul, 3 Swanst. 510. Per
Bishop of Winchester v, Wolgar, cited ibid, 493.

A lessee covenanted to pay a certain proportion of the value of nine hundred Cwt. of the coals to be raised, unless prevented by unavoidable accident from working the pit. It was held, that if the accident were only of such a nature that the working of the pit was not physically impossible, but might have been effected, the defendant was liable, though the expense would be greater than the value of the coals to be raised. (a)

SECTION II.

EQUITABLE REMEDIES.

I. Courts of Equity have long ago adopted the practice of giving relief, in certain cases, by injunction to restrain persons from working mines. This remedy was always obtainable in cases of waste. It was extended to trespasses in mining cases, for the purpose of preventing irreparable mischief. (b) And it has even been carried so far as to restrain the taking of valuable stones, or nodules of clay, used for making cement under a patent, and which were found between high and low water mark, and below low water mark in the sea. (c)

In cases of a pressing nature, an injunction may be obtained on motion only, and before the answer of the defendant is put in. A contrary decision of Lord Hardwicke has been overruled. (d) The bill must, in such cases, be actually filed, and be supported by proper affidavits of title, and showing an actual or threatened interference.

But a distinction has always been observed with respect to the hasty disturbance of mines in active operation,-Mining operations may, in general, be prevented without much permanent injury even to the rightful owner, when no expenditure has been incurred, and when no extensive preparations have been made. But the nature of mining requires that the works should be kept in a constant state of repair and activity, and an injunction for causing such operations to be at once suspended, might produce an injury which might be of the most fatal consequences, both with respect to the costs of recommencing the suspended operations, and with respect to rival ownerships, by which the most favourable opportunity for disposing of the produce might be lost. As a general rule, therefore, the Court will not interfere by injunction, on motion, and before the cause is fully heard, in cases where there

(a) Morris v. Smith, 3 Doug. 279.

(b) Gibson v. Smith, Barn. Ch. Rep. 497. Player v. Roberts, W. Jones, 243, Anon. Amb. 209. Grey v. Duke of Northumberland, 13 Ves, 236. 17 Vcs. 281. Mitchell v. Dors, 6 Ves. 147. Whitfield v. Bewit, 2 Pee. W. 240. Flamang's case, cited 7 Ves. 308. Norway v. Rowe, 19 Ves. 144. Field v. Beaumont, Swans. 208. 3 Madd. 102.

(c) Earl Cowper v. Baker, 17 Ves, 128.

(d) Lowther v. Stamper, 3 Atk, 496.